The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Today we review: Early Case Assessment

Changes to Rules 4, 16, 26, and 34 of the Federal Rules of Civil Procedure are meant to speed up case proceedings and to require counsel to quickly assess the case and what discovery is necessary. Although strategy and views on discovery will certainly change as the case proceeds, the amended rules require a solid assessment of case strategy and discovery issues—particularly electronic discovery—earlier than practitioners may normally be accustomed to. Practitioners who like to take their time should take special note: discovery is moving faster, and attorneys need to keep up.

  1. How do the rule changes speed up the case?

The primary movers are changes to Rule 16 and, to some extent, Rules 26 and 34. First, the revised Rule 16(b)(2) requires the court to issue a scheduling order by the earlier of 90 days after any defendant is served or 60 days after any defendant appears. In both options, that period is 30 days shorter than before.   Second, Rule 26 has been revised to include preservation as a topic to be discussed at the Rule 26(f) conference and the earlier service of Rule 34 requests. At 21 days after service of the complaint on a party, that party may serve the plaintiff or any other served defendant, or be served by any other party, with Rule 34 requests. Although the 30-day period for response does not begin to run until the date of the Rule 26(f) conference, these changes together have the potential to speed up the case by getting each side’s expectations on the table earlier and thus avoiding the delays that come with discovery disputes later. The revision to Rule 4 shortens the time-limit for service of a complaint after filing from 120 to 90 days. Although this change will not affect all cases, it could provide impetus for earlier settlement discussions.

  1. What are the significant changes in substance to Rule 16?

In addition to the earlier setting of the Rule 16 scheduling conference itself, the Rule identifies additional issues to address at the conference.   One of the primary issues is the new requirement of Rule 16(b)(3)(B), where the Rule 16 scheduling order may provide for the preservation of electronically stored information (“ESI”) (in addition to previously allowed disclosure and discovery of ESI). As well, new Rule 16(b)(3)(B)(iv) now specifically allows the scheduling order to include agreements between the parties concerning privilege issues under Federal Rule of Evidence 502.

  1. How might these changes affect counsel’s preparation?

Counsel must come up to speed on the issues earlier, even ahead of the Rule 26(f) conference that must take place before the scheduling conference with the court. Although best practices always considered the proper preservation of ESI, inclusion of this topic within Rule 16, along with certain coordinated changes to Rule 37 (discussed below), require counsel to ensure that proper litigation holds are placed by the client and to become familiar with such ESI topics as the location, nature, and accessibility of the storage repositories of the ESI; the identities of client personnel likely to have relevant information on their own devices or to have access to common drives or repositories of such information; and the client’s policies or automated procedures for document retention/destruction . These duties arise at the point when “litigation is reasonably foreseeable” and require counsel to assess, broadly at the outset, what the claims and defenses are likely to be and possibly discovery materials relevant to them.[1] For plaintiff’s counsel, this duty to preserve will attach no later than the time the decision to file suit is made.

The change specifically allowing the scheduling order to incorporate party agreements on privilege is important, because Rule 502(d) provides that a court may order that certain disclosures or categories of disclosures will not constitute a waiver of privilege in the case—the effect of such an order is that the disclosure may not be argued in any later proceeding, by either the adverse party or a third party, to have been a waiver. The availability of this protection should encourage counsel to focus on possible issues of privilege that may arise during discovery and seek to defuse their potential for effecting a broad waiver of privilege.

  1. How does the change to timing of Rule 34 requests affect strategy?

This change in timing provides an opportunity to have potentially disruptive and delay-causing disputes resolved at the Rule 16 conference, much earlier than could have happened before, and to have some discovery guidance that may go beyond the first set of document requests originally at issue. Even though initial responses are not due until 30 days after the Rule 16 conference, the possibility of early service of the requests may give the parties the opportunity to discuss issues or possible objections, depending on timing, even before the Rule 26(f) discovery conference, and certainly before or at the Rule 16 conference.[2]

To formulate these early requests, counsel should analyze and understand the proofs that will have to be made and the kinds of documents and information the other party is likely to have regarding those issues. This requires early evaluation of the counsel’s claims or defenses, and the possible counter-positions of opposing parties. Getting the requests out early and (after a reasonable time but before the conferences) inviting the opposing party to advise you of potential objections may identify disputes that, if not resolved earlier, can be raised at the Rule 16 conference.   If the party receiving the requests does not engage in discussions or respond to the invitation to discuss possible objections, there may be some leverage with the court if a motion to compel is required down the road.

  1. Do the amendments change the way the Rule 16 conference will be conducted?

Possibly. Rule 16(b)(1) has been amended to read that the court:

[M]ust issue a scheduling order:

(A) after receiving the parties’ report under Rule 26(f); or

(B) after consulting with the parties’ attorneys . . . at a scheduling conference by telephone, mail, or other means.

Although the rule continues to allow the court to base the scheduling order simply on the discovery report, without a conference—or if it holds a conference, to continue to do so by telephone, etc. —there is no mandate for an in-person discussion. Still, the intent was to encourage face-to-face interaction among the parties and the court, and the purpose of the Rules Committee in eliminating the phrase “by telephone, mail, or other means” was to encourage the court to hold a scheduling conference with “direct simultaneous communication” with the parties.[3]